SOCIAL SECURITY TRIBUNAL DECISION Appeal Division

Transcription

1 Citation: J. J. v. Minister of Employment and Social Development, 2016 SSTADIS 443 Tribunal File Number: AD BETWEEN: J. J. Applicant and Minister of Employment and Social Development (formerly known as the Minister of Human Resources and Skills Development) Respondent SOCIAL SECURITY TRIBUNAL DECISION Appeal Division Leave to Appeal Decision by: Neil Nawaz Date of Decision: November 14, 2016

2 REASONS AND DECISION DECISION Leave to appeal is granted. INTRODUCTION [1] The Applicant seeks leave to appeal the decision of the General Division (GD) of the Social Security Tribunal dated March 23, The GD had earlier conducted a hearing by teleconference and determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan (CPP), as it found that her disability was not severe prior to the minimum qualifying period (MQP) ending December 31, [2] On June 14, 2016, within the specified time limitation, the Applicant s representative submitted to the Appeal Division (AD) an application requesting leave to appeal detailing alleged grounds for appeal. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success. THE LAW [3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the AD may only be brought if leave to appeal is granted and the AD must either grant or refuse leave to appeal. [4] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success. [5] According to subsection 58(1) of the DESDA the only grounds of appeal are the following: (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

3 (b) (c) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [6] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada. 1 The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada. 2 [7] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case. ISSUE [8] Does the appeal have a reasonable chance of success? SUBMISSIONS [9] The Applicant submitted a five-page letter with her application for leave that contained detailed commentary and annotation of the GD s decision. She cited several occasions on which she claimed the GD based its decision on erroneous findings of fact, but many of her submissions were in effect a recapitulation of evidence and argument that was already presented to the GD. An appeal to the AD is not ordinarily an occasion on which additional submissions on the existing evidence can be considered, given the constraints of subsection 58(1) of the DESDA, which do not give the AD any authority to make a decision based on the merits of the case. While applicants are not required to prove the grounds of appeal at the leave stage, they must set out some rational basis for their submissions that fall into the enumerated grounds of appeal. It is not sufficient for an applicant to state their disagreement with the 1 Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No (FC) 2 Fancy v. Canada (Attorney General), 2010 FCA 63

4 decision of the GD, nor is it sufficient for an applicant to express her continued conviction that her health conditions render her disabled within the meaning of the CPP. [10] That said, I have gone through the entirety of the Applicant s submissions and identified instances where she has made specific allegations of error on the part of the GD: (a) In paragraph 8(h), the GD suggested that she accepted a mail clerk job in In fact, says the Applicant, she found the job in 2010 and received no accommodations for it due to her disability. (b) (c) (d) (e) In paragraph 8(j), the GD stated that she is receiving a $2,500 for life. In fact, LTIP (Long Term Income Protection) benefits are not for life, and her continued receipt of them were contingent upon her applying for CPP disability. In paragraph 8(r), the GD relied only on Dr. Kim s note dated January 6, 2011 to assess her DeQuervain s tenosynovitis. In fact, she did not benefit from Dr. Kim s treatments, which included two cortisone injections. Her right lower arm pain was not resolved and her fibromyalgia continued to get worse. Dr. Kim advised her that she was not a surgical candidate and discharged her from her care. In paragraph 8(s), the GD relied on Dr. Tham s prognosis ( fair ) from her December 31, 2012 report, but it should also have considered the family physician s report of December 15, 2013, where she stated that Mrs. Juric continues to suffer from chronic symptoms from her various medical conditions which prevent her from returning to any form of occupation... In paragraph 8(v), the GD relied on Dr. Saxena s sleep study report dated May 16, 2014 without taking into consideration the fact that she cannot sleep for extended periods. Furthermore her sleep problems are not connected with snoring, sleep apnea or weight, as suggested in Dr. Saxena s report, and she believes that is more related to fibromyalgia.

5 (f) In paragraph 9(b), the GD represented one of her submissions as follows: In spite of her wrist she could function in school but is unable to do the job. In fact, she never made this statement in the written submissions that accompanied her Notice of Appeal to the GD. She attended a WSIB-sponsored Labour Market Reentry (LMR) program in 2008, and her fibromyalgia was diagnosed in She was able to participate in retraining because she was assisted by computer speaking software, a recording device, an ergonomic arm chair and a special pen. (g) (h) (i) (j) Paragraph 10(b), which sets out one of the Respondent s submissions, misrepresented her medication usage when it said that she had been using Anaprox for almost 20 years as well as Cymbalta since February In fact, she used Anaprox prior 1997 to manage chronic pelvic pain and afterward has taken it for chronic pelvic pain and right lower arm pain. She used used Tridural, Elavil and Amitriptyline for pain relief before starting Cymbalta in 2013 and still uses Tylenol 2 occasionally. Paragraph 10(f), which sets out one of the Respondent s submissions, does not explain what was required of her to show that she was qualified for CPP disability. The Applicant maintains that she sought every possible treatment to address her disability. For her right lower arm, she attended physiotherapy, wore a custom splint and received cortisone injections. She was ready for surgery, but Dr. Kim ruled it out as an option. She takes medication as recommended for her fibromyalgia, to little effect. As indicated by reports from Dr. Silverberg and Dr. Tham, her medical conditions prevent her from working, and have also badly affected her mental health. In paragraph 12, the GD found that the Applicant attempted to create exaggerations, but she insists that she told only the truth. Although she has so many health issues, fibromyalgia is the illness that has left her totally disabled. Having been diagnosed with this condition, she has devoted all her energy toward managing and enduring pain. In paragraph 13, the GD suggested that she was focused only on a monetary benefit and ignored the context in which she asked Dr. Kim for for further

6 evaluation by WSIB and further compensation. The reasons she asked Dr. Kim for a non-economic loss reassessment was because she felt she was entitled to it, but she never claimed it because she could not afford a lawyer. The GD should also know that if she was ever approved for CPP disability benefits, it will be deducted from the amount that LTIP pays her. ANALYSIS Mail Clerk Job [11] The Applicant alleges that the GD erred in finding she accepted a mail clerk job in 2008, when in fact she found the job in 2010 and received no accommodations for it due to her disability. [12] A ground of appeal is established if it can be shown the GD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. I have not reviewed the recording of the hearing and have thus far examined the written record only cursorily, but I see at least a reasonable chance of success on this ground provided the Applicant can: (i) point to evidence, whether in her testimony or the documentary evidence already on file, that proves the GD made an error on this question and (ii) demonstrate that the error, if that is what it is, materially affected the outcome of the GD s decision. LTIP Benefits [13] The Applicant alleges the GD erred in stating that her private disability benefits were for life. In my view, whether or not this is true, an applicant s third-party pension entitlements are irrelevant considerations to determining whether he or she is capable of work for the purpose of CPP disability. That said, while I am willing to accept that the GD indeed made a mistake on this point of fact, I see no indication in the analysis that the GD based its decision on it. [14] I see no arguable case on this ground.

7 DeQuervain s Tenosynovitis [15] The Applicant alleges the GD relied only on Dr. Kim s note dated January 6, 2011 to assess her DeQuervain s tenosynovitis, ignoring assessments from her other physicians, as well as the fact that her condition has never responded to treatment. [16] I see no arguable case on this ground. In paragraph 8(r), the GD summarized Dr. Kim s report as follows: On January 6, 2011 Dr. Kim at William Osler Health Centre notes that at this point in time she has no longer any symptoms of de Quervain s tenosynovitis. However, she continues to have pain. At this point in time she has no surgical entity that can be corrected by surgery or any other intervention that I am able to provide. We discussed continuing on with conservative management for her soft tissue pain such as acupuncture, physiotherapy and registered massage therapy. Apparently she has been through these previously with not much improvement. She is also requesting that she gets re-measured by me for further evaluation by WSIB and further compensation. [17] My review of Dr. Kim s report indicates that its findings were accurately captured by the GD. I have also looked at the other documents cited by the Applicant and see nothing in them that obviously contradicts the Kim report, which would appear to be the most recent indepth opinion on file regarding the Applicant s DeQuervain status. An administrative tribunal is presumed to have considered all the evidence before it, and in this case, the GD made its decision after conducting what appears to be an adequate survey of the evidentiary record. While the Applicant may not agree with the GD s conclusions, it is entitled to sift through the relevant facts, assess the quality of the evidence, determine what evidence, if any, it might choose to accept or disregard, and to decide on its weight. [18] The courts have previously addressed this issue in other cases where it has been alleged that administrative tribunals failed to consider all of the evidence. In Simpson v. Canada (A.G.), 3 the appellant s counsel identified a number of medical reports which she said that the Pension Appeals Board ignored, attached too much weight to, misunderstood, or 3 Simpson v. Canada (Attorney General), 2012 FCA 82

8 misinterpreted. In dismissing the application for judicial review, the Federal Court of Appeal held: First, a tribunal need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all the evidence. Second, assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact [19] The thrust of the Applicant s submissions is that I reconsider and reassess selected documentary evidence and decide in her favour. I am unable to do this, as my authority permits me to determine only whether any of the Applicant s reasons for appealing fall within the enumerated grounds of subsection 58(1), and whether any of them have a reasonable chance of success. In the absence of any specific allegation of error, I do not think there is an arguable case that the GD gave insufficient consideration to the medical reports listed by the Applicant. Dr. Tham s Prognoses [20] The Applicant criticizes the GD for referring to Dr. Tham s December 2012 prognosis of fair without also considering a subsequent declaration from the same physician that she was unable to work. [21] I see a reasonable chance of success on this ground. Dr. Tham s December 2013 report, which contained a more detailed assessment of the Applicant s condition than the December 2012 CPP Medical Report, also offers a prognosis that is, on its face, more supportive of the Applicant s disability claim. It is also more proximate to the end of the Applicant s MQP ending December 31, While the GD s decision did mention the later report, it did so only in the summary of the parties submissions, and otherwise relied on specialist opinions. While noting in its analysis that Dr. Tham s reports contradicted those opinions, it did not explain why it preferred the latter. For this reason, the Applicant has an arguable case that the GD failed to observe a principle of natural justice by giving insufficient reasons.

9 Sleep Study [22] The Applicant alleges the GD relied on Dr. Saxena s May 2014 sleep study without taking into consideration the fact that she cannot sleep for extended periods. However, my review of the decision and the sleep study itself suggests the GD was well aware of the Applicant s complaints of interrupted sleep. The Applicant also maintains that her sleep problems are more related to fibromyalgia and not connected with snoring, sleep apnea or weight. However, this is precisely one of the points the Saxena report makes, and I fail to see how the GD erred in noting it in its decision. Use of Assistive Devices [23] The Applicant alleges the GD misrepresented her evidence when it found that she could function in school despite her wrist limitations but ignored her use of assistive devices to help her complete her retraining. [24] I agree with the Applicant that there is a reasonable chance of success on this ground. While the GD made no specific reference to her completion of the WSIB-sponsored LMR in its analysis, there may be an arguable case it based its decision on an erroneous finding of fact if the Applicant can show the GD relied on a finding that she completed retraining unassisted in the face of evidence that showed the opposite. Medication Usage [25] The Applicant takes issue with the GD s representation of her medication regime, but the error she has identified (regarding when she started to use Anaprox) strikes me as immaterial, and it is unlikely the GD based its decision on it. Paragraph 10(b) was a summary of one of the Respondent s submissions and did not represent a finding of the GD. The remainder of the Applicant s submissions on this matter amount to a restatement of evidence that, from what I was able to determine, was already presented to the GD. If she is requesting that I reconsider and reassess the evidence and substitute my decision for the GD s in her favour, I am unable to do this. My authority as a member of the AD permits me to determine only whether any of the Applicant s reasons for appealing fall within the specified grounds of subsection 58(1) and whether any of them have a reasonable chance of success.

10 [26] I see no arguable case on this ground. Respondent s Argument Re Burden of Proof [27] The Applicant also objects to Paragraph 10(f) of the GD s decision, which summarized one of the Respondent s arguments. As discussed, the GD structured its decision in a way that grouped all of the Respondent s submissions in a single section, and they do not necessarily represent the findings of the GD. The Applicant was given an opportunity to respond to these submissions before and during the hearing, and an appeal to the AD is not an occasion on which to reargue her case on its merits. [28] I do not see a reasonable chance of success on this ground. Credibility [29] The Applicant alleges that in paragraph 12 of its decision the GD found she attempted to create exaggerations, but she insists that she told only the truth. [30] I agree that the Applicant may have an arguable case on this point, not necessarily because the GD has committed a factual error, but because it failed to provide sufficiency of reasons. It appears the GD made a finding on the Applicant s credibility and based its reasons on that finding. If the GD did not adequately explain why it concluded the Applicant s evidence was less than reliable, then the Applicant may have an arguable case that it failed to observe principles of natural justice in rendering its decision. Monetary Benefit [31] The Applicant alleges the GD erred in suggesting that she was focused on a monetary benefit when she asked Dr. Kim for further assessment for WSIB purposes. The Applicant states that, in doing so, the GD ignored her evidence that she stood to see no net financial benefit if either her WSIB or CPP disability claims were approved, and I agree she has an arguable case on this point. I also see a potential ground for appeal on the question of whether the Applicant s motivation for pursuing benefits should be a relevant consideration in assessing disability.

11 CONCLUSION [32] I am allowing leave to appeal on the grounds that the GD may have: (a) (b) (c) (d) (e) Based its decision on an erroneous finding that the Applicant accepted a mail clerk job in 2008, rather than 2010; Referred to Dr. Tham s December 2012 prognosis of fair without also considering her subsequent declaration that the Applicant was unable to work; Misrepresented the Applicant s evidence when it found that she could function in school despite her wrist limitations, while ignoring her use of assistive devices; Erred in finding that the Applicant attempted to create exaggerations, without adequately explaining its reasons for doing so; Erred in suggesting that the Applicant was motivated by money in the absence of evidence that she stood to gain financially by applying for WSIB and CPP disability benefits. [33] I invite the parties to provide submissions on whether a further hearing is required and, if so, what the type of hearing is appropriate. [34] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case. Member, Appeal Division